Swamping the System With Small Fish

What did the voters think they were getting when they passed the “three strikes” law? Those of us who opposed it argued that the law was entirely too rigid. We predicted that it would result in prison overcrowding and activate a vast and costly expansion of the prison system into a home for aged low-level offenders at the expense of schools, parks and crime prevention programs. In the hands of politically inspired district attorneys, it would turn the justice system into a prosecutor’s duck pond, where most of the ducks are not the Richard Allen Davises of the world, but small timers, especially small-time drug users, who are easy targets.

Take the case of Jesus Romero, whose appeal, ruled on June 20, caused the California Supreme Court to deliver a sharp reversal of prosecutorial control of sentencing under the “three strikes” law. The case was decided on the elevated legal grounds of separation of powers and judicial independence, but what galvanized the court were easily recognizable considerations of justice and public policy.

As a matter of justice, there was no question in the mind of the trial judge that Romero deserved to be punished for possessing a quarter of a gram of cocaine. The question was, how much punishment? If this had been Romero’s first offense, he would have been sentenced to between one and six years because the offense is not considered a “serious felony.” But under the “three strikes” law, Romero’s prior convictions on “serious” felonies catapulted him into a sentence of “an indeterminate term of life imprisonment.” The trial judge thought that excessive and sentenced him to six years in state prison. The California Supreme Court ruled that, on separation of powers grounds, trial judges can employ such discretion in sentencing provided that they “set forth the reasons” for their decision.

The Romero decision comes not a moment too soon. A couple of public policy fastballs already have been aimed at the “three strikes” law, in data released in March by the California Department of Corrections. The first showed that 3,749 persons have been imprisoned under “three strikes” for simple possession of a controlled substance, compared with 2,342 defendants who have been imprisoned for all violent offense categories. Indeed, twice as many defendants have been imprisoned under “three strikes” for marijuana possession than for murder, rape and kidnapping combined. That at a time when a Gallup Poll reports that 45% of all Americans say that either they, someone in their family or a close friend has used illegal drugs.

The data’s second fastball showed that “three strikes” has resulted in stark racial disparity. African Americans were arrested for felonies at 4.7 times the rate of whites, incarcerated at 7.8 times the rate of whites and imprisoned for a third “strike” at 13.3 times the rate of whites.

California voters may not be moved by either of these policy fastballs. So what if we imprison drug users for life? And who but a bunch of bleeding heart liberals and academic elites should care if we disproportionately imprison those of darker hue? The answer: taxpayers, that’s who. The Legislative Analyst’s Office in 1995 delivered a pitch where it hurts, right in the pocketbook. It estimates that by the year 2000, California’s prison population will soar to 211,000 from 135,000 today, and the costs for operating the prison system will rise to about $5 billion, or 18% of the total state budget--an increase of nearly 60% in five years.

Considerations of justice, fairness and separation of powers aside, why should we spend our scarce resources to imprison low-level drug offenders for life, when our real concern is to prevent crime by vicious criminals like Richard Allen Davis? I cannot think of one good reason.